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"Court May Pass Many Judgments, But Parliament Can Say We Would Not Accept Because It Is Not In The Interest Of People"; AG KK Venugopal To SC In Tribunal Case
Mehal Jain
4 Jun 2021 11:26 AM IST
"If the Union of India losing a case can become the subject matter of legislation, that will become the order of the day!", the Supreme Court remarked on Thursday, asking how the government could have "knocked down" the basis of its order by bringing in an ordinance.The bench of Justices L. Nageswara Rao, Hemant Gupta and Ravindra Bhat was hearing the Madras Bar Association's challenge to the...
"If the Union of India losing a case can become the subject matter of legislation, that will become the order of the day!", the Supreme Court remarked on Thursday, asking how the government could have "knocked down" the basis of its order by bringing in an ordinance.
The bench of Justices L. Nageswara Rao, Hemant Gupta and Ravindra Bhat was hearing the Madras Bar Association's challenge to the Tribunals Reforms (Rationalization and Conditions of Service) Ordinance 2021, by which the Centre is contended to have legislatively overruled the consistent stand of the Supreme Court on how tribunals shall be constituted right from 2010. The main points raised in the petition by the Madras Bar Association are: The Ordinance fixes a minimum age limit of 50 years for appointment as Tribunal Members; it fixes their term as 4 years as against the 5 required by the SC; it has re-introduced the idea of a panel of two names being recommended by the Search Cum Selection Committee (SCSC); it dilutes the SC direction by saying that the Central Government should make appointments "preferably within 3 months"; etc.
The bench was hearing ASG Balbir Singh when Justice Rao made the aforesaid remark. The ASG was addressing the court on the aspect of the retrospective application of sub-section (11) of section 184 of the Finance Act, 2017, which has come to be introduced by virtue of the impugned Ordinance, and which has been called the "most contentious" and the "most curious" of all the grounds of challenge. [The said provision stipulates that notwithstanding anything contained in any judgment, order, or decree of any court or any law for the time being in force, (i) the Chairperson of a Tribunal shall hold office for a term of four years or till he attains the age of seventy years, whichever is earlier; and (ii) the Member of a Tribunal shall hold office for a term of four years or till he attains the age of sixty- seven years, whichever is earlier. The proviso to the sub-section lay down that where a Chairperson or Member is appointed between May 26, 2017 and the notified date of the Ordinance, being April 4, 2021, and the term of his office or the age of retirement specified is greater, then, the term of office or age of retirement or both, shall be as specified in his order of appointment subject to a maximum term of office of five years.]
The concern raised by the petitioner-organisation, and reiterated by the bench, were the interim orders passed by the Court in Kudrat Sandhu's case (passed pending the challenge to the 2017 Tribunal Rules), by which it had come to be directed, by mandamus, that the appointment to the tribunals made in the interregnum shall be as per the Parent Act and Rules and hence the tenure is to be determined as per the old statutes. The concern was that sub-section (11) had been accorded retrospective applicability from May, 2017 and it was not clear as to what would be the fate of the appointments to the ITAT and the CESTAT, which were made under the mandamus, and where the old Rules and Acts envisaged holding of office till the age of 62 years.
Mr. Singh indicated the first order dated February 9, 2018, which had been passed in Kudrat Sandhu, where it was noted that the Court was considering "suggestions for an interim order" and that Mr. K. K. Venugopal, Attorney General for India "submitted that he has no objection if the suggestions (including that all appointments to be made in pursuance to the selection made by the interim Search-cum-Selection Committee shall abide by the conditions of service as per the old Acts and the Rules) are presently followed as an interim measure"
"It was understood that it was an interim measure during the pendency of the challenge to the 2017 Rules. What should happen during the pendency of the petition is what is coming out from all these orders. That was the understanding of the court in the 2019 Roger Mathew case (where the 2017 Rules were struck down). That is how it was communicated during Roger Mathew also", submitted the AG.
Agreeing that they are interim orders, Justice Rao pointed out that on the basis of these orders, certain accrued rights have been created. "Can you, by retrospective legislation, take away those rights? Initially, people were to be appointed until the age of 62 years. There is sufficient law on this that legislation can be retrospective. But when you are taking away an accrued, vested right, then you have to specifically state that you intended to take away those rights", observed the judge.
The ASG advanced that when a statute declares certain terms of conditions like right to hold office for 5 years, it does not become a private contract between two parties so as to create a vested right. "Those interim orders were commuted into the final order of this court where the court recognised that they were only the interim arrangement to fill up a lacuna or vacuum. Not only was 184 upheld but the provisions in the corresponding Act were not challenged. It was only to fill the lacuna that it was directed to apply the pre-2017 position", told the ASG.
"Can the Parliament override a mandamus of the court?", asked Justice Rao.
The ASG indicated the 1978 7-judge bench decision in Madan Mohan Pathak, where the issue was whether a mandamus, by a Single Judge of the Calcutta High Court, directing a settlement (relating to the terms and conditions of service of Class III and Class IV employees including bonus payable to them) between the LIC and its employees can be dissolved by an invalidating Act.
"The issue was that when the settlement was directed by a Single judge of the Calcutta High Court, whether the settlement can be dissolved without challenging the Single Judge's order. It was held by the Court that this is not like invalidating the judgement of the court and it is not to be equated on those lines", it was submitted.
At this, Justice Bhat pointed out that the judgment held that the direction given by the Calcutta High Court is not a mere declaratory judgment "holding an impost or tax to be invalid, so that a validation statute can remove the defect pointed out by the judgment amending the law with retrospective effect and validate such impost or tax", but it is a judgment giving effect to the right of the petitioners to annual cash bonus under the Settlement by issuing a writ of Mandamus directing the LIC to pay the amount of such bonus. "If by reason of retrospective, alteration of the factual or legal situation, the judgment is rendered erroneous, the remedy may be by way of appeal or review, but so long as the judgment stands, it cannot be disregarded or ignored and it must be obeyed by the Life Insurance Corporation", the 1978 decision held, as indicated by Justice Bhat.
"It was held that once there is a mandamus or a judgement as regards the right of the parties, you can't take them away. Inter-party mandamus cannot be taken away. Indira Gandhi (1975) is the case on this point because the expression used there was that there cannot be a 'legislative judgement'. You may bring in an Act but you cannot set aside the individual decision inter-parties", noted Justice Bhat.
Next, Justice Bhat referred to the 1985 decision in B. Prabhakar Rao where the facts were that in the State of Andhra Pradesh the age of superannuation was 55 years to begin with, but in the year 1979, the Government raised the age to 58 years. In February 1983, the Government decided to reduce the age of superannuation of its employees from 58 to 55 years. Subsequently, in August, 1984, an ordinance was promulgated again raising the age to 58. The authorities sought to give effect to the provisions of the Ordinance by seeking to throw out the employees on the ground that they had completed 55 years of age during the interregnum between February 28, 1983 and August 23, 1984. Some others who had completed 55 years between February 28, 1983 and August 23, 1984 but who had not completed 58 years sought re-entry, notwithstanding the raising of the age of superannuation from 55 years to 58 years.
"The age of retirement was rolled back from 58 to 55. But it was given a prospective effect. So in between a lot of people, who ought to have succeeded and got back their posts, were denied. Justice O. Chinnappa Reddy said that not giving retrospectivity in this case would be arbitrary. But there is a radical difference between that case and the present matter. Justice Reddy said that we will give it a retrospective application to bring in people. In your case, it is to throw out people", commented Justice Bhat.
Earlier in the day, the bench had heard AG K. K. Venugopal.
'Court may pass any number of judgements. But the Parliament can always say we would not accept this because it is not in the interest of people'- AG
AG K. K. Venugopal advanced that if the Court's judgment was not there, noone could say that four years' tenure, with the right of reappointment with a preference, to continue until the age of 67 years or 70 years of age, is violative of Article 14 or the principle of independence of judiciary, or that the minimum age limit of 50 years across the board for all employees is bad or a provision of house rent allowance equivalent to the secretary of the government or a cabinet secretary is arbitrary or affects the rule of law.
He indicated the 2020 Supreme Court decision in Ashwani Kumar's case, which was to bring a comprehensive legislation for custodial torture, to submit that a mere violation of the Court's directions may not be ground to strike it down a law.
"But it is settled that till there is no law, orders passed by the court would hold until the law is made. After the law is passed, the law cannot be set aside on the ground the directions are already there. Here what is being discussed is will orders passed by this court survive after a law has been passed, We are on a slightly different ground. ", differentiated Justice Rao.
"The Supreme Court of India has more cases than any other country. Thousands of judgements are written. A law laid down in any one of them, if it is not followed, it leads to the present situation", argued the AG
"Today, we are grappling with the Parliament enacting the law, day after day after day, as if the judgments did not exist. What about that behaviour? How do you deal with an Executive which goes on administering the law as all the judgements of the Supreme Court or the High Courts never existed?", asked Justice Bhat.
"The court has struck down the rules as to the tenure of 4 years, the panel of 2 or 3 candidates per post. If you are bringing them in again and again by legislation, are you not overruling the judgement by way of legislation?", asked Justice Gupta.
The AG insisted that it is settled that it is open to the Parliament to override provided conditions, that the Parliament is a co-equal organ of the State- "Your Lordships may pass any number of judgements. But the Parliament can always say that we won't accept this because it is not in the interest of people. The Parliament is entitled to override the judgement of the Supreme Court, within the contours of what is permissible"
"In the early years of the Constitution, the states were passing land reforms, abolishing zamindari, etc. At that stage, the principle was that Article 31 so requires. This Court struck them down one after the other. In Golak Nath case, it was said that 25 amendments had been passed to override the court. And it was reversed. The Parliament was helpless. The question is was the Parliament justified? That is why I said that if each one of the grounds of challenge to the 20201 Ordinance are taken separately, nobody would think that a tenure of 4 years or 5 years, etc is arbitrary", advanced the AG
"How have you removed the defect of 4 years?", asked Justice Gupta.
"Originally, the Search Cum Selection Committee had the CJI and 4 secretaries to the government. They used to override whatever the CJ said. In the 2010 Madras Bar Association case, Your Lordships said that the SCSC is to comprise a majority of judicially trained persons- Judicial dominance. We did what Your Lordships wanted (by the 2017 Rules). We did not say that even the presence of 4 secretaries would not take away the independence. We are not seeking to override blindly whatever Your Lordships said. Whatever the Ordinance is or what the Legislature says is in the interest of the people, in the interest of the institution", replied the AG.
The AG urged the bench to not keep the directions of the court in mind in determining if the minimum age requirement of 50 years across the board for all is unreasonable, or if the tenure of 5 years is reasonable but 4 years is unreasonable, or that housing rent allowance equivalent with the Cabinet Secretary is arbitrary
Nobody is questioning the Parliament's right or competence to legislate. But are you saying that when the Parliament legislated in 2017, it was to cure the defects identified in 2010? That argument did not bode well in Roger Mathews also (where the 2017 Rule were struck down)", observed Justice Bhat.
Next, the AG relied on the 2018 judgment in Kalpana Mehta's case, on the scope of courts in interfering with matters of policy- "Your Lordships may not issue directions to the Legislature directly or indirectly"
Justice Rao noted, "That is on a different point, that the court cannot give directions to the legislature to enact a law in a particular manner"
In response, the AG indicated that in its November 2020 judgment, the Court has directed the government of India to amend the 2020 Rules, to make the tenure as 5 years or the age of 67/70, whichever is earlier.
"But you have done that. According to the present law also, that is the rule- uptil the age of 67/70", noted Justice Rao.
"That we have carried out. But we have kept the tenure as 4 years. Also, Your Lordships had envisaged reappointment for 1 term, but we said that one may continue till 67 or 70", replied the AG.
"The Marbury rules say that it is the court which has the authority to state what the law is", Justice Rao remarked. "It is on a very limited basis. It is the right of the Parliament to pass it or reject it. If the Parliament rejects it, it cannot be said that the law is unconstitutional. Look at the ordinance- whatever Your Lordships wanted, we have done. On two aspects alone, there was a deviation which is attributed to the collective wisdom of the government", replied the AG.
Then, Justice Rao quizzed the AG about sub-section (11) to section 184 of the Finance Act, which stipulated that notwithstanding anything contained in any judgment, order, or decree of any court or any law for the time being in force, (i) the Chairperson of a Tribunal shall hold office for a term of four years or till he attains the age of seventy years, whichever is earlier; and (ii) the Member of a Tribunal shall hold office for a term of four years or till he attains the age of sixty- seven years, whichever is earlier. The proviso to the sub-section gives it a retrospective application, laying down that where a Chairperson or Member is appointed between May 26, 2017 and the notified date of the Ordinance, being April 4, 2021, and the term of his office or the age of retirement specified is greater, then, the term of office or age of retirement or both, shall be as specified in his order of appointment subject to a maximum term of office of five years.
"There was a mandamus that any appointments made in the interregnum (pending the challenge to the Rules; in Kudrat Sandhu's case) would continue under the old Rules and the parent Acts. So this sub-section (11), which you have given retrospective effect from 2017 onwards, is a direct affront to the orders passed by the court. How do you deal with that?", asked the judge.
"Even when I was arguing Roger Mathews, I had said that all this is beyond the scope of judicial review and Your Lordships' may not go into all this...sub-section (11) has been given effect from May, 2017, when the Finance Act was brought into force...Suppose we had said the person is to hold office for 5 years or the age of 67/70, whichever is earlier, would it have been valid? And now would it be invalid because I said 4 years?", responded the AG.
Justice Rao indicated that the point is that the Proviso to the sub-section says that if any of the appointments were made for a tenure longer than the one prescribed in it, such term shall be limited to 5 years. The judge said that there are 2 orders of the Court in Kudrat Sandhu's case, as regards the ITAT and the CESTAT, where appointment has been directed, by a mandamus, to continue uptil the age of 62 years, in accordance with the parent Act and Rules, and inquired about the fate of these appointments in the light of the retrospective application of sub-section (11).
"Your Lordships will have to decide objectively, taking the provision without reference to the mandamus. The mandamus cannot operate in the teeth of so many judgements which say that Your Lordships cannot give a direction to make a law. If, say, the labour court or the industrial tribunal had framed the terms and conditions for workers to continue till the age of 62, Your Lordships could make it 67. That is an area where Your Lordships are entitled to adjudicate. But this is with regard to the Legislature. Your Lordships can't interfere unless there is a fundamental right violation or violation of any express provision of the constitution or the law is beyond the legislative competence", advanced the AG.
Continuing, he submitted that while the Court felt that 5 years is reasonable, it necessary that the Parliament also feel so. It was his stand that the judgment of the Court was in the nature of a guideline as to what should be the law.
"But the original provision was also for 5 years, and after the 5 years, it also had the provision for reappointment. That provision was there initially too. So it is not like you have done something new, the only thing that you have done is substituted 5 years with 4", observed Justice Bhat.
"We thought that public interest would be totally satisfied with 4 years and reappointment. If a committee, which is presided over by the CJI and has judicial dominance, feels that the record of a person has been satisfactory, he will be continued. But after the many judgements, one cannot doubt that the direction to the legislature to legislate in a particular manner is nugatory", reiterated the AG.
When the AG sought to rely on the English courts' practice of judicial review, Justice Rao pointed out that the UK courts do not normally interfere with the Parliament, and that only recently, the court has been interfering with Parliamentary action on the limited grounds that it violated the European Human Rights code. "We are slightly different from them. We appreciate the part about the expertise that the Parliament has, that it knows about the people. All we are saying is that the system is slightly different", he said.
It may be noted that on Wednesday, the AG had argued that policy decisions are a collective process and not a one-person process. When a legislation is passed, it is the collective will and collective decision of 500 or 300 members, unlike in the court where the judges are sitting in 13 benches of 2 or 3 judges. "In court, the thinking is of three judges or at the most five judges as to what the Constitution is. There is a lot of difference. The former has the advantage of standing committees which examine witnesses. It is not a question of one hour of arguments and then the judgement is given by three judges or five judges. A Proposal goes to the undersecretary, to the directors in between, to the additional secretary, the joint secretary, to the secretary and the Ministry", the AG had argued.
To this, Justice Bhat on Thursday said that even if a decision is taken by the full court, the AG would say that the Parliament still has 534 members. "This is not a game of numbers. It is about who ultimately interprets the Constitution. Each organ is interpreting the Constitution. No one attributes any motive that somebody is intentionally widening the Constitution. To say that the Parliament has the standing committee and so we should not be striking down any law at all would be to go to the pre-Marbury days. Sometimes, we read down the law, sometimes we strike it down in totality, sometimes we uphold it"
The AG still insisted that bureaucracy requires each decision to go through various stages, that there is the benefit of the standing committee which also comprises law graduates, and that a proposal might even go through the Law Commission.
Finally, Justice Rao inquired about the constitution of the National Tribunals Commission directed to be set up by the November, 2020 judgment- "It is not mentioned in the Ordinance also...we had given a direction 6 to 7 months ago"
The AG replied that he has spoke to the Cabinet Secretary and that the officers who were to be a part of it have been put in charge of the National Task Force. "In the interim, we had given a a direction to have one department, one nodal agency", said the judge. The AG assured that the same will be done straightaway.
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